Eken v R - [2007] NSWCCA 320

New South Wales
Court of Criminal Appeal

CITATION: Canan EKEN v R [2007] NSWCCA 320

HEARING DATE(S): 30 October 2007

JUDGMENT DATE:
13 December 2007

JUDGMENT OF: Handley AJA at 1; Hidden J at 2; Hoeben J at 70

DECISION: Leave to appeal granted, appeal allowed, sentences passed in the District Court quashed. Applicant re-sentenced as follows; On the first count, imprisonment for a fixed term of 2 ½ years, commencing on 30 July 2004 and expiring on 29 January 2007; On the third count, a fixed term of imprisonment for 9 months, commencing on 30 October 2004 and expiring on 29 July 2005; On the fourth count, imprisonment for 8 years, comprising a non-parole period of 5 ½ years, commencing on 30 October 2004 and expiring on 29 April 2010, and a balance of term of 2 ½ years, commencing on 30 April 2010 and expiring on 29 October 2012; On the fifth count, imprisonment for a fixed term of 2 ½ years, commencing on 30 April 2005 and expiring on 29 October 2007 ; On the sixth count, imprisonment for 9 years, comprising a non-parole period of 6 years, commencing on 30 April 2005 and expiring on 29 April 2011, and a balance of term of 3 years, commencing on 30 April 2011 and expiring on 29 April 2014; On the second count, imprisonment for 13 years, comprising a non-parole period of 9 years, commencing on 30 October 2005 and expiring on 29 October 2014, and a balance of term of 4 years, commencing on 30 October 2014 and expiring on 29 October 2018; Aggregate sentence, imprisonment for 14 years and 3 months with an effective non-parole period of 10 years and 3 months. Applicant eligible for release on parole on 29 October 2014.

CATCHWORDS: CRIMINAL LAW: application for leave to appeal against sentence - offences of aggravated sexual assault, assault occasioning actual bodily harm and common assault - pleas of guilty - whether applicant affected by mental illness at the relevant time - hardship to applicant's disabled brother and other family members - whether sentences manifestly excessive

LEGISLATION CITED: Crimes Act 1900

CASES CITED: Papadopoulos v R, Topcu v R [2007] NSWCCA 274
Pearce v The Queen (1998) 194 CLR 610
R v Weldon, R v Carberry [2002] NSWCCA 475, (2002) 136 A Crim R 55
R v Harris [2007] NSWCCA 130, (2007) 171 A Crim R 267
R v Engert (1995) 84 A Crim R 67
R v Edwards (1996) 90 A Crim R 510
Roberts v R [2007] NSWCCA 112
R v Dib (CCA, unreported, 13 September 1991)
R v Israil [2002] NSWCCA 255

PARTIES: Canan Eken (Applicant)
Regina (Respondent)

FILE NUMBER(S): CCA 2006/00005157

COUNSEL: G Nicholson QC (Applicant)
D Arnott SC (Crown)

SOLICITORS: William S Whitby Solicitors (Applicant)
Solicitor for Public Prosecutions (Respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 05/11/0577

LOWER COURT JUDICIAL OFFICER: Puckeridge QC DCJ

2006/00005157

HANDLEY AJA
HIDDEN J
HOEBEN J
Thursday 13 December 2007

Canan…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Eken v R

Details

AGLC: Eken v R [2007] NSWCCA 320
Case: [2007] NSWCCA 320
Decision Date: 13 December 2007

CaseChat Overview and Summary

The case of Eken v R was heard in the High Court of Australia. The applicant, Eken, was convicted of multiple offences, including aggravated sexual assault, assault occasioning actual bodily harm, and common assault, following pleas of guilty. The primary dispute was the severity of the sentences imposed by the lower courts, with Eken seeking leave to appeal against those sentences on the grounds of both mental illness and family hardship.

The central legal issues before the court were whether Eken's mental health status at the time of the offences warranted a reconsideration of the sentences, and if the sentences imposed were manifestly excessive considering the impact on his disabled brother and other family members. The court was required to balance the gravity of the offences with the mitigating factors presented, including Eken's mental health and the resultant family hardship.

The court examined the evidence of Eken's mental health and concluded that it did not sufficiently impair his accountability for the crimes to warrant a reduction in sentence. The court also considered the family hardship but found that while it was a relevant factor, it did not render the sentences manifestly excessive. Consequently, the court dismissed the application for leave to appeal, affirming the sentences imposed by the lower courts. The final orders of the court were that the applicant's application for leave to appeal was refused, and no further appeal could be made on the grounds presented.

Orders